Governance of schools by maintenance organisations

Before the discussion of cases relating to governance of schools by maintenance organisations, it should be noted that the scope of the Act on Public Education covers education in kindergarten, education in school, education in student hostels. This is irrespective of the institution and organisation performing these services and irrespective of the maintenance organisation in charge of such institutions. Although the overwhelming majority of public education institutions are maintained by local governments, the set of fundamental principles laid down by the Act on Public Education allows for a public education institution to be established and maintained by the state, a local government, a local minority self-government, a national minority self-government, a religious legal person registered in the Republic of Hungary, a business organisation, a foundation, association or other legal person established in the Republic of Hungary having its official seat in the Republic of Hungary and having a legal personality or a natural person. The Act on Public Education contains special provisions concerning institutions maintained by organisations other than municipal governments.

According to the Act on Local Governments, the set of the mandatory tasks of local governments includes the provision for nursery school, kindergarten and primary school education. Such tasks are performed by local governments in accordance with the provisions laid out in the Act on Public Education. The statutes provide for the provision of services, not for the maintenance of institutions. In the course of organising and operating of such institutions, and by informing its constituents, a local government realises local public will in a democratic way. Where a local government maintains at least two institutions, it is obliged to prepare a plan that outlines the performance of tasks, a plan for the operation and development of an institutional network. This is a required preparation for its decisions in regards to the organisation of the performance of its public education related duties.

From the above provisions it follows that the provision for public education services may be organised only through the democratic co-operation of a broad range of participants. Since the Commissioner participates in the promotion of exercising of rights of children, pupils, teachers, parents and their associations. The promotion of rights of the maintenance organisations in charge of educational institutions is beyond his remit. This is the reason for the fact that the Office could not actually deal with decisions made by maintenance organisations in charge of schools, in relation to education and teaching.

Measures taken by maintenance organisations in charge of schools violating professional autonomy and/or the autonomy of the heads of institutions

The head of an institution, who is appointed by the maintenance organisation, is the link between the school and the maintenance organisation in charge of the school. The law assigns the tasks of the management of the teachers' board, the governance of the educational work and its controlling, as well as exercising of the rights of the employer, to the competence of the head of the institution. At the same time, law imposes a definite restriction on governance by maintenance organisations in charge in that they cannot restrict the technical/professional autonomy of schools.

Clearly, a local government, as the school's maintenance organisation, will adjust the organisational framework of the institutions to the tasks to be performed and to the number of children. This constitutes an element of its' financial management, including headcount management, tasks and obligations of local governments. Therefore, the maintenance organisation in charge of institutions has to participate in the governance and organisation of task performance, but it cannot withdraw rights from the head of the institution.

A petitioner complained of a decision taken by the local government. Apparently, it had decided that in a local school, where the launching of one first grade class had been permitted, that the director might launch additional classes if necessary. This would only happen if the number of children coming exclusively from the district comprised a minimum of 20 children, as at least 23 children coming exclusively from the district had shown their intent to attend the new first grade class. The schoolmaster objected to the regulation that he may admit only children living in the district to the class. For the wording of the rule lead to the conclusion that he cannot admit children from outside the district even if the number of children enrolled from the district had reached the number specified by the local government. We turned to the mayor who informed the Office that the council had revoked its decision on its next meeting and had introduced a new, compliant resolution. (VI/185/2000.)

Some petitions were submitted to the Office on account of infringements pertaining to class sizes in kindergarten or in school. Annex 3 of the Act on Public Education specifies the maximum class size, but under circumstances provides that such maximum numbers may not exceeded 20%. It is possible to exceed the class size at the beginning of a school year where only one kindergarten class is launched in the institution and during the school year it is justified on account of a transfer of a new child or pupil. This is a binding rule on institutions.

A complaint was submitted to the Office by parents of children in the fourth grade of a primary school, concerning the decision by the council of the local government on the merging of two classes. The class so formed was comprised of 36 children whereas the law limits the number of children in a class to 26 pupils. The investigation performed by the Office revealed that the classes had to be merged as a result of the drop of the number of teachers. The council planned to eliminate the infringing situation before the next school year. The problems of a school facing the difficulties of a teacher shortage are easy to understand but this may not justify the violation of the law. Therefore, we submitted an initiative to the mayor to exercise his rights as employer. He was to instruct the head of the institution to put out a tender for the vacant teacher positions and make his bet effort to prevent that the maximum number of classes as specified by law is not exceeded in the school. (VI/623/2000.)

The council of a municipal government decided on terminating a local kindergarten class. According to the complainant the maximum class size was exceeded as a result of the decision. The mayor informed the Office that as a result of the lack of funding in the year 2000 budget the council reviewed the task performance of the local governmental institutions, which resulted in the termination of the class. When deciding on admissions, the senior kindergarten teacher decided, after taking into account the opinions of the employees, to admit all the children. Her view was that this would not result in any problem in the operation of the institution and consequently no child would have to go without a kindergarten education. This decision would continue to ensure the balanced development of each child in the community, which is in line with the will of the parents requesting kindergarten services for their children. In our view the limits on the numbers of children in the class were not materially exceeded, therefore, the excess did not threaten the quality standards of service provision. Therefore, the complaint was rejected on account of its minor importance. (VI/365/2000.)

Pursuant to Article 29 (1) of Decree No. 11/1994. (VI. 8.) MKM, a meeting of the teachers' board may be summoned by a schoolmaster, by one third of the members of the teachers' board or, with the agreement of the teachers' board, by the school board or the organisation of parents or the self-government of pupils/students. Consequently, no other individuals, not event the mayor, has the right to summon a meeting of the teachers' board.

One complaint was submitted by a teachers' panel, which constituted eight members, which complained about the violation of the autonomy of their school. The teachers complained that the mayor interfered with the management of the school and that on two occasions, he summoned the teachers' board without informing the schoolmaster. In his response submitted to the Office the mayor admitted to the offending actions by referring that he had disclosed the resolutions of the council relating to the school. In view of the above mentioned legal regulation, we submitted an initiative to the mayor that in the future the teachers should be informed as specified by law. Also, that the mayor should refrain from behaviour where he became involved in the management of the teachers' board and the instructions of teachers. The mayor accepted the initiative. (VI/190/2000.)

A number of schoolmasters complained about the restrictions on the exercising of their employer rights, including the right to manage their employees.

One schoolmaster complained about the restriction of human resource management at state sponsored institutions. The complainant objected to a measure imposing restrictions on the manner of terminating public servants. According to the measure concerned, where an employer terminated an employee by mutual agreement or by transfer to another job, the employer had to request agreement with the mayor for the employment of a person for the vacated position. The Office informed the mayor that it was considered as adverse both for the employer and for employees. The complainant then informed the Office that the mayor had revoked his non-compliant measure. (VI/33/2000.)

School reorganisations

During the period under review, the Office received a large number of submissions concerning cases relating to the reorganisation of schools. Although the review of these cases revealed either that such cases were beyond the remit of the Office or that no infringement had taken place, owing to the large number of complaints the position established by the Office in this respect should be elaborated here.

In one case, students, in a number of cases, parents' organisations, heads of institutions and teachers' associations submitted petitions to the Office concerning their apprehensions relating to the closure or integration of schools. In several cases, lawyers represented the complainants.

In our view, the closure of a school is against the interest of students, parents and teachers but it does not violate their rights. For pursuant to Article 102 (2) of the Act on Public Education, a maintenance organisation in charge of a school is responsible for deciding on the establishment, reorganisation or closure of a public education institution. The fact that the law assigns the decision relating to the establishment, reorganisation and closure of a public education institution to the discretionary scope of the school maintenance organisation means that such organisation has exclusive right and responsibility concerning such decisions. The decision making power of such organisation is, however, restricted by the fact that it may close its public education institution only if it continues to provide for the performance of the services concerned. It must make sure that the use of such services does not impose disproportionate burdens on pupils and parents. Based on its development plan, the opinion of the county government has to be obtained in order to carry out such a decision.

The parents' association of a school submitted a complaint to the Office with respect to the local governmental decision concerning the revision of the public education concept of the town, complaining that the local government was planning to close their school without a legal successor. They expressed their doubt about the possibility of providing for the appropriate standards of education for their children after the closure of the school. They argued that they would face disproportionate difficulties if they had to transfer their children to other schools. They were also concerned about the physical development of their children because they argued that the children would then be transferred to an environment detrimental to their health. They supported this argument by submitting an environment impact study. In response to the concerns raised by parents the mayor explained that the duty to be performed might be carried out more effectively and more efficiently in another way or in another school. He added that the local government would provide a high standard of services for each of the classes transferred to other schools. That there would be no problem using the schoolbooks that had already been ordered and since the recipient schools were located in the same residential district, it would take only a few minutes more to get to the schools. The case was closed for lack of an infringement. (VI/239/2000.)

Article 102 (3) of the Act on Public Education provides an additional guarantee for the participants in education. It states that a maintenance organisation in charge of a school, prior to making a decision concerning the reorganisation of a school, has to acquire the opinion of the school's employees, the school board, the parents' association or organisation, and the pupils' or students' self-government of the school concerned. Although the contents of such opinions are not binding on the local government in making its decision, failure to ask such organisations for their opinions constitutes an infringement of the law.

In one case the complainants claimed that the local government council had failed to ask the school board or the teachers' association their opinion prior to reorganising the school. The maintenance organisation in charge of the school is obliged to ask such organisations for their opinions on such matters. Therefore, the local government violated the law by failing to do so. (VI/192/2000.)

In regards to some petitions that were submitted, the local government concerned had not yet made its decisions on closing or merging schools, therefore, the assumed infringement had not even taken place. In such a case, the Office could not take action according to the law, for planned measure or a resolution that has not yet been implemented cannot violate anyone's rights. A direct threat of an infringement requires a decision already made but not yet implemented, assuming that it would result in the violation of rights of others.

One complainant claimed that the local government was planning to reorganise the school though no concrete action had been taken. The media wrote about the closure of the school and it made it impossible for the school to continue functioning in an appropriate way. The complainant was informed that the Office could take no action without an actual decision on the closure of the school. (VI/97/2000. VI/115/2000.)

Conflicts arising in educational institutions are communicated to the Commissioner for Educational Rights when they actually come to light. The Office has found, however, that a lot of conflicts remain hidden. Suppressed conflicts will sooner or later emerge but then they tend to be so violent and spectacular that it leaves little room for a reasonable resolution. Emotions tend to cover up the actual reasons for the conflict. A conflict may be covered up for a variety of reasons. Teachers often feel that their professional reputation is impaired when pupils submit petitions against them or where parents raise objections. As has been mentioned, public education institutions do not have mechanisms for conflict resolution. They do not have a system that would enable them the recognition and analysis of conflicts, the exploration of the reasons or the development of solutions based on agreement to remedy the situation. Hierarchy in schools is part of the problem. For those in a dominant position tend to try to resolve problems by misusing their position of power, and in such cases, resistance, discontent and evasion will be inevitable.

In our view such phenomena hinder the exercising and enforcement of educational rights. We are convinced that democratic education necessitates a democratic atmosphere in a school and the democratic settlement of any conflict that may arise in a school. The interaction between interest groups and those holding powers within a school and the scope of publicity usually determine the mode of the handling of conflicts. All of these have a pedagogical effect as well, having an impact on the relationship of the participants in education with respect to the law and law enforcement. Therefore, we considered it important to organise a general survey that may enable us to identify factors hindering the operation, exercising and enforcement of educational rights. The survey is being performed by the Kurt Levin Foundation and the Sociology Institute of the University of Arts of Budapest (ELTE), and headed by György Ligeti, a well-known sociologist.

Although the report will be completed by early summer, our suppositions seem to be confirmed already in the current phase of the survey. We will present some of the preliminary observations hereunder. In many cases schools violate the law in the assumed interests of children. The illegitimacy of dismissals and expulsions from a school shows not only the lack of disciplinary procedures, but also the grave problems of conflict management. In many institutions problems are considered resolved by the dismissal of a teacher or a pupil/student. Hindering the operation and existence of students' self-government is a phenomenon which is not intended by anyone but which still occurs. In some cases, teachers, that are appointed to promote the activities of students' self-governments, are not acceptable to the students but are approved by the school's management. It should be noted that teachers and teachers' boards often make immense efforts to introduce and operate systems of control instead of organising programmes for pupils or students that could replace controlling.

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OFFICE OF THE COMMISSIONER FOR EDUCATIONAL RIGHTS
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